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108. The Department of Housing and Urban Development (HUD) also reaches out to immigrant communities to educate residents on their rights under the Fair Housing Act through publications that are translated into many languages. HUD has recently increased its efforts by reaching out to service providers and advocates that work directly with immigrant communities and educating those intermediaries on fair housing law.

109. The Department of Defense (DoD), through its Military Equal Opportunity Program (DoD Directive 1350.2, Department of Defense Military Equal Opportunity (MEO) Program, August 18, 1995) works to ensure full equality of opportunity and freedom from harassment or discrimination based on race, color, religion, sex, or national origin. DoD Directive 1350.02 provides that it is DoD policy that “[s]ervice members shall be evaluated only on individual merit, fitness, and capability. Unlawful discrimination against persons or groups based on race, color, religion, sex, or national origin is contrary to good order and discipline and is counterproductive to combat readiness and mission accomplishment. Unlawful discrimination shall not be condoned.” Furthermore, the entire chain of command must be used “to promote, support, and enforce the MEO program. The chain of command is the primary and preferred channel for identifying and correcting discriminatory practices. This includes the processing and resolving of complaints of unlawful discrimination and sexual harassment, and for ensuring that human relations and EO matters are taken seriously and acted upon as necessary.”

110. DoD Directive 1350.2 directs that the Secretaries of the Military Departments (Army, Navy and Air Force) are responsible for ensuring these policies “are understood and executed at all levels of military command.” Commanders are required to assess their organizational Equal Opportunity (EO) climate, and are “held accountable for the EO climates in their commands.” They are charged with identifying and eliminating any “practices that unlawfully discriminate against military personnel based on race, religion, color, sex, or national origin.”

111. The U. S. military prohibits discrimination within its ranks, and it proactively combats such actions in its conduct with the outside world. DoD Directive 5410.18 prohibits DoD from providing community relations support to “events sponsored by organizations restricting membership by race, creed, color, national origin, or gender…. ” The DoD Human Charter Goals, signed by then-Secretary of Defense Cohen in July 24, 1998, establish that DoD make a goal for itself, “To make military service in the Department of Defense a model of equal opportunity for all regardless of race, color, sex, religion, or national origin.”

112. On December 18, 2010, Congress passed a law to repeal 10 U.S.C. 654, the law prohibiting gay and lesbian service members from openly serving in the military, commonly referred to as “Don’t Ask Don’t Tell.” Don’t Ask, Don’t Tell Repeal Act of 2010. Under the Repeal Act, the repeal took effect 60 days following delivery to Congress of a certification by the President, the Secretary of Defense and the Chairman of the Joint Chiefs of Staff stating that the statutory conditions for repeal had been met, including that implementation of repeal “is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces”. In July 2011, the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff made the certification and delivered it to Congress. The repeal became effective on September 20, 2011.

Remedies

113. United States law provides a variety of avenues for seeking compensation and redress for alleged discrimination and denial of constitutional and related statutory rights. Specific remedies were described in paragraph 98 of the Initial U.S. Report and paragraph 59 of the Second and Third Periodic Report. Developments in legal remedies since the submission of the Second and Third Periodic Report are addressed throughout this report under appropriate subject headings, for example reference to the Lilly Ledbetter Fair Pay Restoration Act under Article 2, above.

114. The rights enumerated in the Covenant and provided by U.S. law are guaranteed equally to men and women in the United States through the Equal Protection and Due Process Clauses of the Fourteenth and Fifth Amendments to the United States Constitution. These provisions prohibit both the federal government and the states from discriminating on the basis of sex. On March 11, 2009, President Obama issued Executive Order 13506 creating the White House Council on Women and Girls. The mission of this Council is to establish a coordinated federal response to issues that affect the lives of American women and girls and to ensure that federal programs and policies address and take into account the distinctive concerns of women and girls, including women of color and those with disabilities. In setting up the Council, President Obama stated that issues such as equal pay, family leave, and child care are not just women’s issues, but issues that affect entire communities, our economy and our future as a nation.

115. In addition to setting up the Council, one of President Obama’s first actions was to sign the Lilly Ledbetter Fair Pay Act of 2009, which helps ensure that claims for pay discrimination will not be barred because claimants were not aware of the initial discriminatory pay-setting decision. On June 10, 2010, President Obama issued a proclamation commemorating the 90^th Anniversary of the Department of Labor Women’s Bureau, established by Congress in 1920. He said, “As a Nation, we must recommit to the enduring vision of the Women’s Bureau and work to support all wage-earning women.” The Women’s Bureau’s vision is to empower all working women to achieve economic security. The Bureau is focusing on four policy areas: 1) promoting high-growth, high-paying “green” jobs, nontraditional jobs, and science, technology, engineering and mathematics (STEM) occupations for women; 2) narrowing the wage gap between men and women; 3) promoting work-life balance, especially workplace flexibility; and 4) improving services for homeless women veterans. The Director of the Women’s Bureau is the principal adviser to the Secretary of Labor on issues affecting women in the labor force. Some federal agencies also have programs to encourage the advancement of women in their own workforces.

116. President Obama also convened a National Equal Pay Task Force that brought together the leadership of agencies with a role to play in wage discrimination affecting women – the EEOC, DOL, DOJ, and Office of Personnel Management. On July 20, 2010, the Task Force released recommendations for government actions to ensure full compliance with wage discrimination laws and to help provide solutions for families balancing work and caregiving responsibilities. These recommendations called for improved interagency coordination on wage discrimination enforcement efforts, increased outreach and education concerning wage discrimination, and evaluation of current data collection needs and capabilities. As an example of increased outreach and education concerning wage discrimination, President Obama issued a proclamation to commemorate National Equal Pay Day, the day that the average wage of a woman since the prior year catches up to the amount earned by the average man in the prior year (for 2011 -- April 28), and relevant agencies conducted public forums and outreach events concerning sex-based pay discrimination. See Presidential Proclamation – National Equal Pay Day, http://www.whitehouse.gov/the-press-office/2011/04/11/presidential-proclamation-national-equal-pay-day. Joint efforts between EEOC and OPM also are underway to enforce equal pay laws within the federal government. See Joint Letter for Equal Pay in the Federal Government, http://www.eeoc.gov/federal/memo_epa.cfm

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  Since 2009, the United States has filed seven cases under the Fair Housing Act alleging that a landlord or a landlord’s agent has engaged in a pattern or practice of sexually harassing female tenants. DOJ/CRD has found that the similarities in these cases are striking; the victims are typically low-income women with few housing options who are subjected to what the DOJ has found are repeated sexual advances and, in some cases, sexual assault by landlords, property managers, and maintenance workers.
  
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  The pattern or practice investigation of the New Orleans Police Department (NOPD) marked the first time ever that DOJ found reasonable cause to believe that a police department had engaged in a pattern or practice of gender-biased policing. Among other things, DOJ/CRD found that NOPD systematically misclassified large numbers of possible sexual assaults, resulting in a sweeping failure to properly investigate many potential cases of rape, attempted rape, and other sex crimes.
  
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  DOJ/CRD has stepped up enforcement of the Freedom of Access to Clinic Entrances (FACE) Act, protecting the right to access and provide reproductive health services without interference. Since 2009, it has filed eight civil FACE complaints, which have already resulted in three consent decrees. Comparatively, in 2007, one civil FACE case was filed, and in the preceding eight years, DOJ did not file a single civil FACE case.
  
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  DOJ/CRD has stepped up enforcement of prohibitions on employment discrimination. For example, last spring, it reached a consent decree with the Hertford County, North Carolina, Public Health Authority to resolve a claim that the Health Authority rescinded an offer of employment and refused to hire a woman for a Health Educator Specialist position after learning she was pregnant.
  
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  DOJ/CRD has also looked for opportunities to weigh in on Title IX cases. In 2009, it filed an amicus brief in a case against the Florida High School Athletics Association, which had reduced the maximum number of competitions that a school could schedule while exempting 36,000 boys who played football and only 4,300 girls and 201 boys who participated in competitive cheerleading. After the court accepted CRD’s brief, the association voted unanimously to rescind its policy. 
  

119. In 2009, the Supreme Court reaffirmed the viability of constitutionally-based claims of sex discrimination, holding that the existence of the specific statutory remedy in Title IX of the Education Amendments of 1972, 20 U.S.C. sec. 1681 (barring sex discrimination in federally funded education programs and activities), does not preclude constitutional equal protection claims for such discrimination, Fitzgerald v. Barnstable School Committee, 555 U.S. 246 (2009). In that case, parents who alleged that the school’s response was inadequate to their claims of sexual harassment of their kindergarten-age daughter by an older male student at school brought claims against the school under both Title IX and the Equal Protection Clause of the Constitution. Overturning lower court decisions that had limited the parents to proceeding under Title IX, the Supreme Court held that Title IX supplemented rather than replaced the claim for unconstitutional sex discrimination in schools.

120. One emerging area of employment discrimination enforcement involves allegations that implicit bias or a general policy of discrimination infected otherwise subjective employment decisions. These issues arose in the recent case of Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011), in which a class of over 1 million female Wal-Mart employees in stores around the United States alleged that Wal-Mart discriminated against them on the basis of sex in determining pay and making promotions, in violation of Title VII of the Civil Rights Act of 1964. The Court held that plaintiffs had not produced significant proof that Wal-Mart operated under a general policy of discrimination against women that was central to the claim of each female employee in the class, and thus did not satisfy the “commonality” requirement for a class action under Rule 23(a)(2) of the Federal Rules of Civil Procedure. Rather, regional and individual store managers had discretion to make decisions on pay and promotion for employees in their regions or stores. The Court ruled that plaintiffs’ evidence of subjective decisionmaking was insufficient to meet their burden of demonstrating a common question of law or fact under Rule 23(a)(2). Rather, plaintiffs must identify a specific employment practice common to all class members to satisfy Rule 23(a)(2). In addition, the Court held that the plaintiffs’ claims for back pay could not be certified under Rule 23(b)(2), which does not permit certification of class actions for individualized monetary relief claims. Since this filing, several smaller groups of women have filed smaller pay and promotion class claims concerning the practices of a particular region within Wal-Mart. 

121. Discrimination in employment based on pregnancy. The Pregnancy Discrimination Act (PDA) of 1978, 42 U.S.C. 2000e (k) (2004), which amended Title VII of the Civil Rights Act, protects women from employment discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” The PDA requires that pregnancy be treated the same as other physical or medical conditions with respect to leave, health insurance, and fringe benefits. As noted in paragraphs 65 to 68 of the Second and Third Periodic Report, the Supreme Court has held that the PDA protects not only female employees, but also the female spouses of male employees. Finally the PDA prohibits discrimination on the basis of a woman’s capacity to become pregnant, as well as pregnancy, childbirth or related conditions. The EEOC’s charge filing statistics report a sharp increase in charges filed under the PDA since the last report (6,119 in 2010, up from 4,730 in 2005). Examples of recent PDA litigation include:

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  In March 2011, DOJ resolved a lawsuit alleging that the Hertford County, North Carolina, Public Health Authority engaged in pregnancy discrimination in violation of Title VII. The complaint alleges that the health authority discriminated against a female applicant on the basis of her sex when the authority’s former health director rescinded an offer of employment to Ms. Sathoff once the health director learned that she was pregnant. Under the terms of the consent decree, the health authority will implement policies and procedures that prohibit sex discrimination, including pregnancy discrimination, and provide training to all health authority employees with hiring responsibilities and all supervisors on the law of equal employment opportunity, including discrimination based on sex. Additionally, the health authority will pay a $20,000 monetary award. U.S. v. Hertford County, NC (E.D. N.C. 2011)
  
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  In June 2009, DOJ filed a lawsuit against the Sheriff of Bryan County, Oklahoma, alleging that the Sheriff engaged in a pattern and practice of discrimination against women based on pregnancy by requiring the reassignment of female Confinement Officers employed at the Bryan County Jail to administrative duties upon their becoming pregnant. The Sheriff did not treat any other medical condition in a similar manner and did not take into account the female officer’s ability to continue performing her regular duties while pregnant. The case was resolved in June 2009 through a consent decree that requires the Sheriff to implement a policy that prohibits employment discrimination on the basis of pregnancy, to treat pregnancy as it does any other medical condition, and to provide mandatory training regarding sex and pregnancy discrimination to Bryan County Sheriff’s Office employees. U.S. v. Bryan County, OK (E.D. Okla. 2009).
  
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  In May 2009, the court approved and entered a consent decree requiring the Sheriff of Hendry County, Florida, to implement a policy that prohibits employment discrimination on the basis of pregnancy, and to provide mandatory training regarding sex and pregnancy discrimination to certain employees. The consent decree requires the Sheriff to provide a former deputy with a monetary award of $33,280 for lost wages and compensatory damages, and offer her an opportunity for reinstatement. Two other female employees, who also were subjected to the mandatory light duty policy, will receive $1,500 each in compensatory damages under the terms of the consent decree, which expired in May 2011. U.S. v. Sheriff of Hendry County, FL (M.D. Fla. 2009).
  
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  In December 2010, EEOC obtained a settlement of $1.62 million for a class of 29 female security guards who were allegedly subjected to discrimination based on pregnancy. The lawsuit alleged that the employer had a nationwide practice of forcing pregnant employees to take leave or discharging them because of pregnancy. Several of the women alleged that they were prevented from attempting their annual physical agility and firearms tests, or forced to take such tests before their certifications had expired. In addition to the monetary relief, the settlement requires the employer, for a period of two years, to report to EEOC any employees who are required to take a leave of absence while pregnant, are terminated while pregnant, or who lodge internal complaints of pregnancy discrimination; report to EEOC about any physical agility test it intends to implement to screen or re-qualify employees and whether pregnant employees are permitted to take the test; and to provide annual training to managers and supervisors concerning the requirements of the Pregnancy Discrimination Act. The agreement further provides for the company CEO to issue a message concerning discrimination and transmit to all employees a well-defined, comprehensive anti-discrimination policy. EEOC v. Akal Security, Inc. (D. Kansas (2010).
  
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  In April 2010, EEOC obtained a settlement of $570,000 and additional relief from a company that closed a charter middle-school where the pregnant workers were employed, and then re-opened as a private middle and high school on the same grounds without retaining the pregnant workers. The court-approved consent decree required the school to provide EEO training for relevant managers and supervisors, create an anti-discrimination policy and distribute it to employees, post a notice regarding the case in the workplace, and provide the EEOC with regular reports of its internal complaints for two years. EEOC v. Imagine Schools, Inc. (W.D. Mo.).
  

123. Pregnancy/maternity leave discrimination in housing and lending. The Fair Housing Act prohibits discrimination on the basis of familial status, which includes anyone who is pregnant or is in the process of securing legal custody of a child, in all housing transactions, including mortgage lending. In 2011, HUD's Office of Fair Housing and Equal Opportunity (FHEO) received an increasing number of complaints of lending discrimination involving maternity/paternity leave issues. The alleged discrimination often involves pregnant women, women who have recently given birth and who are on maternity leave, as well as men who are on paternity leave due to the birth or adoption of a child. These cases include outright rejection of lending applications, and lender modification of the terms and conditions of the loan once pregnancy, recent birth or adoption or maternal/paternity leave becomes known to the lending institutions. Alteration or imposition of new terms and conditions on a mortgage loan solely because of the borrower’s status with regard to pregnancy or maternity/paternity leave is contrary to the Fair Housing Act:

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  In June 2011, HUD conciliated a complaint against Cornerstone Mortgage Company filed by Dr. Elizabeth Budde, who alleged that she was initially denied a mortgage loan even though she was on paid maternity leave and planned to return to work. The Department initiated its own complaint against the lender to resolve systemic issues. Under the terms of the conciliation, Cornerstone agreed to pay Dr. Budde $15,000 in compensation, create a $750,000 victims’ fund to compensate other Cornerstone borrowers who experienced similar discrimination, and notify all borrowers who applied during a two-year time frame of their right to seek compensation if they experienced treatment that was discriminatory because a borrower or co-borrower was pregnant or on maternity leave; and adopt a new policy clarifying how it will treat applicants for loans who are on parental leave, including maternity leave. 
  
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  On July 5, 2011, the United States filed a Fair Housing Act complaint against the nation’s largest mortgage insurance company and two of its underwriters in United States v. Mortgage Guaranty Insurance Corp., et al. (W.D. Pa.). The complaint alleges that the defendants discriminated on the basis of sex and familial status by requiring women on paid maternity leave to return to work before the company would insure their mortgages. The case was referred to DOJ/ CRD after HUD received a complaint from a homeowner in Wexford, Pennsylvania, who was required to return to work from paid maternity leave to obtain mortgage insurance. HUD conducted an investigation and issued a charge of discrimination. In addition to seeking relief for the individual homeowner, the lawsuit also includes a claim that the defendants’ actions constitute a denial of rights granted by the Fair Housing Act to a group of persons that raises an issue of general public importance.
  

125. Prohibition of sex discrimination in education. Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., continues to prohibit sex discrimination in education programs or activities that receive federal financial assistance. Federal regulations and Department of Education (ED) policy provide more detailed guidance on conduct that violates Title IX, including sexual harassment, the failure to provide equal opportunity in athletics, discrimination based on pregnancy, and discrimination in admissions and course offerings. Each school or educational institution is required to designate an employee to coordinate its Title IX responsibilities, including investigating complaints.

126. Title IX is enforced primarily by ED/OCR, which investigates complaints, conducts compliance reviews, issues policy guidance, and provides technical assistance to schools. In addition, every federal agency that provides financial assistance to education programs is required to enforce Title IX. In August 2000, DOJ and twenty federal agencies issued a final common rule for the enforcement of Title IX. The Supreme Court has found an implied private right of action for students and school employees to bring private lawsuits against recipients of federal financial assistance for violations of Title IX. Cannon v. University of Chicago, 441 U.S. 677 (1979). In 2005, the Supreme Court held that Title IX’s private right of action encompasses claims of retaliation against an individual for complaining about sex discrimination because such retaliation is an example of the intentional sex-based discrimination prohibited by Title IX. Jackson v. Birmingham, 544 U.S. 167 (2005).

127. Prohibition of discrimination in education on the basis of pregnancy. As discussed in paragraphs 72-74 of the Second and Third Periodic Report, Title IX’s implementing regulations, 34 C.F.R. 106.40 (a) and (b), specifically prohibit educational institutions that are recipients of federal financial assistance from applying any rule concerning a student’s actual or potential parental, family, or marital status that treats students differently on the basis of sex and from discriminating against any student on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the recipient’s education program or activity. The regulations further require recipients to treat pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom in the same manner and under the same policies as any temporary disability with respect to benefits and policies. In addition, while normal pregnancies do not generally satisfy the definition of disability under Section 504 of the Rehabilitation Act of 1973 or under the Americans with Disabilities Act of 1990 (ADA), both of which prohibit disability discrimination, a particular woman’s complicated or unusual pregnancy may be considered a disability under Section 504 or the ADA. The requirements of the law and regulations, as described in the Second and Third Periodic Report, have not changed.

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  In August 2011, the EEOC obtained a settlement in a sexual harassment and retaliation case against a private contractor that provided firefighting services to governments. The case concerned a female worker who complained about sexual remarks, drawings, and pornography at work and was reassigned, disciplined, and told to “get along.” A man who supported her charge also was reassigned. The settlement provides for $ 215,000, some of which will be used to establish an outreach fund to actively recruit women as firefighters. It also requires the company to create interactive training for all personnel concerning anti-discrimination laws, provide an internal policy for handling harassment complaints, appoint a compliance officer to administer the policy, and submit to three years of monitoring by the EEOC. EEOC v. ITT Corp., (D. Hawaii 2011).
  
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  In March 2011, the EEOC obtained jury verdicts of $1.26 million and $1.5 million in two separate cases of sexual harassment. The large size of these verdicts was due to both the nature of the conduct and the employer’s inappropriate response to complaints. In one, a manager frequently propositioned his subordinates, teenage employees, and grabbed their breasts and buttocks, made frequent lewd gestures, and on one occasion, stuck his tongue in the mouth of a teenage employee. This manager, who was engaged in a consensual sexual relationship with the company’s owner, was never disciplined for his conduct despite repeated complaints. EEOC v. KarenKim, Inc. (W.D.N.Y. 2011). The second case, involving the higher award, involved managers who exposed their genitalia to subordinate employees, forced female workers to touch their private parts, and required female sales staff to join a “smooching club” in order to receive sales leads or accounts necessary to earn commissions. During the trial, management testified that they had no policies concerning workplace harassment and did not think they were necessary. EEOC v. Mid-American Specialties (W.D. Tenn. 2011).
  
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  In November 2009, EEOC settled a claim of same-sex harassment involving a class of men targeted for sexual harassment by other men; this harassment included sexually charged remarks, touching of genitalia, and forcing victims into episodes of simulated rape. Managers witnessed employees dragging their victims kicking and screaming into the refrigerator, but they took no action to stop this conduct. One worker called the police in response to the harassment. The settlement provides the workers with $345,000 and requires the company to provide training for its employees and manager about sexual harassment, establish an ombudsman for hearing sexual harassment complaints of employees, expunge from personnel files any references to the workers’ having filed EEOC charges, provide a neutral employment reference for class members who seek outside employment, review and revise its written policies on sexual harassment, and regularly report information regarding its compliance with the settlement to EEOC for the duration of the 2 year consent decree. EEOC v. Cheesecake Factory, Inc. (D. Az.).
  

130. Remedies for sex discrimination. The types of injunctive and compensatory relief available in cases of sex discrimination described in paragraph 77 of the Second and Third Periodic Report remain available without change. Individuals who receive less pay for substantially equal work in the same facility based on their sex also may pursue claims under the Equal Pay Act of 1963. Under the Equal Pay Act, workers may recover back pay, and in cases of “willful violations,” also may be awarded liquidated damages, or double the amount of the back pay award. Where both the Equal Pay Act and Title VII of the Civil Rights Act of 1964 are violated in a pay discrimination case, the worker cannot recover both compensatory and liquidated damages, but he or she may receive whichever damage award is greater. EEOC also may seek an injunction to prohibit employers from transporting or selling goods produced in violation of the Equal Pay Act.

131. Employment -- family leave. The Family and Medical Leave Act (FMLA), 29 U.S.C. 2601 et seq., guarantees that eligible employees who work for a covered employer can take up to 12 weeks of unpaid leave a year for the birth or adoption of a child, or for a serious health condition of the employee, child, spouse or parent. Serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves in-patient care in a hospital, hospice, or residential medical care facility, or continuing treatment by a health care provider, 29 U.S.C. 2611 (11). The FMLA allows states to provide additional protections, and several states do so. For example, some states have family and medical leave laws that apply to employers with fewer than 50 employees, provide longer time periods for family and medical leave, use a more expansive definition of “family member,” or require leave for participation in children’s educational activities.

132. In 2008, the FMLA was amended by the National Defense Authorization Act (NDAA), P. L. 110-18,1 to permit an eligible employee who is the “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness incurred in the line of duty on active duty.” The amendment also permits an eligible employee to take FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” On November 17, 2008, the Department of Labor published a final rule implementing these amendments and also incorporating developments in the law concerning the FMLA, input from stakeholders and public comments, and the Department’s 15 years of experience in administering and enforcing the Act. See 73 Fed. Reg. 67933 (November 17, 2008). This rule became effective on January 16, 2009. The rule provides for Military Caregiver Leave and Qualifying Exigency Leave (available for short-notice deployment, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and additional activities agreed to by the employer and employee). It also updates and streamlines other aspects of administration of the Act. On October 28, 2009, these FMLA military family leave provisions were further amended by the National Defense Authorization Act for Fiscal Year 2010 (2010 NDAA), Pub. L. 111- to broaden coverage for qualifying exigency leave and expanded military caregiver leave to cover employees with family members who are veterans with a qualifying serious illness or injury. On December 21, 2009, the FMLA was amended to expand FMLA coverage in the airline industry by establishing a special hours of service requirement for flight crew employees, Pub. L. 111-119.

133. Employment – maternity leave. Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA) (see above), imposes certain obligations on employers with respect to maternity leave. The PDA requires that women affected by pregnancy or childbirth be treated the same as others for all employment-related purposes, including receipt of benefits under fringe benefit programs and leave time. Although an employer need not treat pregnancy more favorably than other conditions, an employer may choose to do so. See California Federal Savings & Loan Ass’n v. Guerra, 479 U.S. 272, 285 (1987). However, the Court recently found no discrimination against women who received less seniority credit for time spent on maternity leave before the PDA went into effect, which resulted in their receiving lower pensions than workers who were credited for leave of similar duration taken for other purposes. AT&T Corp. v. Hulteen, 556 U.S. 701 (2009). The Court’s rationale focused on the interplay between the PDA and Title VII of the Civil Rights Act’s allowance for bona fide seniority systems that were lawful when the seniority was calculated. The Court also relied on the lack of Congressional intent to apply the PDA retroactively to pregnancy-based distinctions. Since this ruling only applies to leave taken prior to 1978, its impact is limited.

134. Violence against women. In recognition of the severity of the crimes associated with domestic violence, sexual assault, and stalking, Congress passed the Violence Against Women Act of 1994 (VAWA 1994) as part of the Violent Crime Control and Law Enforcement Act of 1994. VAWA is a comprehensive legislative package designed to end violence against women; it was reauthorized in both 2000 and 2005. VAWA was designed to improve criminal justice responses to domestic violence, dating violence, sexual assault, and stalking and to increase the availability of services for victims of these crimes. VAWA promotes a coordinated community response (CCR) to domestic violence, sexual assault, and stalking, encouraging jurisdictions to bring together victim advocates, police officers, prosecutors, judges, probation and corrections officials, health care professionals, leaders within faith based organizations, and survivors of violence against women and others from diverse backgrounds to share information and to use their distinct roles to improve community responses to violence against women. The federal law takes a comprehensive approach to violence against women by combining tough new penalties to prosecute offenders while implementing programs to aid the victims of such violence.

135. Implementation of the Violence against Women Act (VAWA) continues to be an important federal priority, led by the Office on Violence Against Women in the U.S. Department of Justice. DOJ/OVW was created specifically to implement VAWA and subsequent legislation. OVW administers financial support and technical assistance to communities around the country to facilitate the creation of programs, policies, and practices aimed at ending domestic violence, dating violence, sexual assault, and stalking. Its mission is to provide national leadership to improve the nation’s response to these crimes through the implementation of the VAWA and related legislation. OVW pursues this mission by supporting community efforts, enhancing education and training, disseminating best practices, launching special initiatives, and leading the nation’s efforts to end violence against women.

136. In 2002, legislation was enacted that made OVW a permanent part of DOJ, with a Presidentially-appointed, Senate-confirmed Director. Currently, OVW administers two formula grant programs and 19 discretionary grant programs, all of which were established under VAWA and subsequent legislation. Since its inception in 1995, OVW has awarded over $4 billion in grants and cooperative agreements and has launched a multifaceted approach to implementing VAWA. In addition to overseeing these grant programs, OVW often undertakes a number of special initiatives in response to areas of special need. These special initiatives allow OVW to explore different innovations in the violence against women field and share knowledge that can be replicated nationwide.

137. As part of the 2009 American Recovery and Reinvestment Act, $225 million was provided to the Office of Violence Against Women in the Department of Justice for five of its programs: $140 million for the Services Training Officers Prosecutors Formula Grant Program (STOP Program) to enhance services and advocacy to victims and improve the criminal justice system response to violence against women; $8.75 million for state sexual assault and domestic violence coalitions; $43 million for the Transitional Housing Assistance Program; $20.8 million for the Tribal Governments Grant Program to enhance the ability of tribes to respond to violent crimes against American Indian and Alaska Native women; and $2.8 million for the Tribal Sexual Assault and Domestic Violence Coalitions to end violence against American Indian and Alaska Native women. Initiatives taken under Title IX of VAWA 2005 to address violence against women in Native American and Alaska Native communities are described in detail under article 2 above.

138. DHS/CRCL also investigates allegations of violations of the confidentiality provisions of VAWA 2005. These provisions prescribe strict limitations on the disclosure of information relating to aliens who are applying for or who have been granted forms of immigration relief for victims of certain crimes, such as domestic abuse or trafficking in persons. The provisions also preclude DHS from taking enforcement action against such victims based solely on information supplied by the perpetrator of the crime or abuse. In 2009, DHS/CRCL completed its first investigation regarding alleged VAWA confidentiality violations by U.S. Immigration and Customs Enforcement (ICE) employees and has worked on additional complaints since then. CRCL’s recommendations to ICE included: (1) additional training for all new ICE employees, officers, and field staff on relevant VAWA issues; and (2) enhanced communication systems and technologies among DHS immigration Components to ensure that ICE agents know when aliens have VAWA applications pending with USCIS in order to ensure that such aliens are treated in accordance with VAWA protections. USCIS now uses special indicators in existing information systems to alert other DHS users if an alien has a pending VAWA application. USCIS also provided training to other DHS components to help them understand these confidentiality indicators.

139. In 2010, CRCL made new, additional recommendations to USCIS to develop a nationwide standard operating procedure addressing the acceptance and processing of change of address letters in order to better protect VAWA applicants’ confidentiality. CRCL recommended that the procedure include enhanced mechanisms for USCIS to verify acceptance of a change of address request for a VAWA applicant. In addition, CRCL recommended that USCIS ensure that all field offices interpret and implement the new procedures in a uniform manner. In response to these concerns, CRCL and USCIS collaborated to improve the processes by which protected VAWA and T and U visa filers may update an address or check the status of a benefit case, including ensuring that only those authorized to inquire about or change an address for these types of cases are allowed to do so (see paragraphs 165 and 168 below for a description of these visa programs). This enhancement requires additional steps for USCIS to verify the identity of the inquiring party, updated training for call center employees to properly handle requests from protected filers, and additional warning language on web content and other publications to help prevent the unauthorized disclosure of information.

140. HUD has implemented VAWA through a rule issued on October 27, 2010. The new rule clarifies and aligns HUD's statutory responsibilties with VAWA, providing more detailed guidance to housing authorities and Section 8 property owners on how to implement VAWA, and making a commitment to provide further guidance in the future. The new rule requires that housing authorities or management agents exhaust protective measures before eviction. Evictions can only take place after the housing or subsidy providers have taken actions that will reduce or eliminate the threat to the victim, including transferring the abuse victim to a different home, barring the abuser from the property, contacting law enforcement to increase police presence or develop other plans to keep the property safe, and seeking other legal remedies to prevent the abuser from acting on a threat. The new rule also broadens the definitions of "actual and imminent threat," to help housing or subsidy providers understand that to use "imminent threat" of harm to other residents as a reason for eviction of the victim, the evidence must be real and objective - not hypothetical, presumed or speculative. See http://edocket.access.gpo.gov/2010/pdf/2010-26914.pdf.

141. HUD has issued guidance explaining that victims of domestic violence not only have rights under VAWA but also may be protected under the Fair Housing Act’s prohibitions against sex discrimination where housing issues are implicated. Women are overwhelmingly the victims of domestic violence; according to the DOJ Bureau of Justice Statistics (DOJBJS), 85 % of victims of domestic violence are women. In 2009, women were about five times as likely as men to experience domestic violence. Based in part on such statistics, which show that discrimination against victims of domestic violence is almost always discrimination against women, domestic violence survivors who are denied housing, evicted, or deprived of assistance based on the violence in their homes may have a cause of action for sex discrimination under the Fair Housing Act. See http://www.hud.gov/offices/fheo/library/11-domestic-violence-memo-with-attachment.pdf.

142. In addition, certain racial and ethnic groups experience disproportionately high rates of domestic violence. For example, Black/African American and American Indian/Alaska Native women experience higher rates of domestic violence than White women. Black or African American women experience intimate partner violence at a rate 35 % higher than that of White females, and about 2.5 times the rate of women of other races. American Indians and Alaska Natives are victims of violent crime, including rape and sexual assault, at more than double the rate of other racial groups.² Women of certain national origins also experience domestic violence at disproportionate rates. Women who experience housing discrimination based on domestic violence may therefore also have causes of action for race or national origin discrimination under the Fair Housing Act. The availability of a Fair Housing Act cause of action provides victims of unlawful discrimination with the possibility of bringing claims for actual damages and injunctive relief either in federal or state courts or through an administrative complaint investigated by HUD or a state or local fair housing enforcement agency.

143. Women and the economy. In 2010, of the 123 million women aged 16 years and over, 72 million (59 %) were labor force participants; of those, 66 million women were employed, with 73 % working full time and 27 % part time. The largest percentage of employed women (41 %) worked in management, professional, and related occupations; 32 % in sales and office occupations; 21 % in service occupations; 5 % in production, transportation and material moving occupations; and 1 % in natural resources, construction and maintenance occupations. In 2008, the unemployment rates for men and women were 6.1 % and 5.4 %, respectively. The rates rose in 2009 to 10.3 % for men and 8.1 % for women, and in 2010 to 10.5 % for men and 8.6 % for women. For the majority of occupational groups, employment losses among men were larger than those of women. Much of the overall decline in men’s employment can be attributed to their concentration in the manufacturing and construction industries, which sustained the majority of job losses during the recession. Men also accounted for 60 % of job losses in management, business, and financial occupations. During the recovery period, women have experienced high job losses due to their disproportionate representation in industries that continue to experience job losses, such as state and local government. In 2009, women held 49.8 % of nonfarm payroll jobs, compared with 48.6 % in 2007. These figures reflect the growing importance of women as wage earners. Nonetheless, women on average earn only 77-80 % of what men earn.